1. ' The prosecution case is that on 3-6-1987 buffaloes of the accused trespassed the cultivation of the complainant Gul Muhammad who thereupon was taking them to the cattle pond. Accused Rano and Islam armed with rifles, Mehrullah armed with a gun and Nawabdin armed with lathi came to the land and demanded the restoration of the buffaloes to them which was refused by the complainant who insisted them to be taken to the cattle pond. Respondents Nos.1 and 2 shot two fires from their rifles which hit the complainant who was injured in his right shoulder. The accused then ran away. The complainant lodged the F.I.R. The same day at about 1-30 p.m. With Police Station Tangwani. The S.H.O referred the complainant to Civil Hospital, Jacobabad. The Medical Officer of the Civil Hospital, Jacobabad finding the case as serious referred the complainant to the Civil Hospital, Quetta for treatment. After the report was lodged the police came into action and arrested Nawabdin. The other three accused, namely, Rano, Islam and Mehrullah could not be arrested as they had absconded away. The police presented the challan in the Court of Additional Sessions Judge, Kandhkot on 23-6-1987 against all the four accused who were challaned under section 307/34, P.P.C. The learned Additional Sessions Judge by his order dated 3-8-1987 issued a proclamation under sections 87 and 88, Cr.P.C. The three accused were thus declared as absconders. However, Rano and Islam surrendered themselves in Court on 8-11-1987 and Mehrullah on 14-2-1988. Accused Rang and Islam were, however, released on bail by the learned Additional Sessions Judge by his order dated 16-11-1987 and Mehrullah on 21-2-1988. Being aggrieved by the said order the complainant filed an application on 20th December, 1987 for cancellation of to Rano and Islam which was rejected by the learned Additional Sessions Judge by his order dated 14-2- 1988. Now the above criminal miscellaneous application has been filed under section 497(5), Cr.P.C. For cancellation of bails granted by the learned Additional Sessions Judge to accused Rano and Islam by his order, dated 16-11-1987 and Mehrullah on 21-21988.
2. ' Mr. Muhammad Daud Baloch, learned counsel for the applicant/complainant submits that the impugned order granting bail to the accused suffers from a number of infirmities both on points of fact and law. The learned Judge has not at all taken into consideration the fact of ascendance of the three accused of which serious note has been taken by the superior Courts. It is further submitted by the learned counsel that the learned Judge has misread the medical certificate. Mr. Zawar Hussain Jafferi, learned counsel for the State supports the application.
3. ' As regards abscondence it is true that the learned Judge has not applied his mind to that aspect of the matter. The F.I.R. Was lodged on 3-6-1987 and the two accused surrendered themselves in Court on or about 8th November, 1987 after about 5 months. Reliance is placed on Awal Gul v.
4. Zawar Khan PLD 1985 SC 402. The relevant observation reads as under:- "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper . Cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another 1979 SCMR 90, Rao Qadeer Khan v. The State PLD 1981 SC 93, Hayat Bakhsh and others v.
5. The State PLD 1981 SC 265 and Kh. Azhar Hussain and another v. The State 1983 SCM R 978. It is now well-established law that a fugitive from law loses some of the normal rights granted by the procedural as also substantive law."
6. ' In the above case the F.I.R. Was lodged on 9-3-1983 and the accused surrendered themselves on 11-6-1983 after about 4 months' time, but the ascendance having remained unexplained and no note taken of it by the High Court, the bail seems to have been cancelled on the ground of ascendance of the four accused in the cited case.
7. ' As regards the injuries on the complainant, the medical certificate mentions the following injuries:-
(1) Wound of entry on the right anterior aspect of the shoulder joint and (upper part of chest).
8. Irregular inverted margins 1/2" x 1/4" x 1/2".
(2) Wound of entry 1/2" above 1st wound 1/2" x 1/4". No wound of exit seen. Exit wound on the back of right shoulder joint at the middle of right (3) scapula 4" x 3-1/2" x 2" everted.
9. The observations of the learned Judge that there was only one injury is a plain misreading of the medical certificate which clearly describes three injuries. C Of course one of them is a corresponding injury. So there are two grievous injuries.
10. ' Medical certificate also mentions that the right shoulder of the complainant has become functionless. This comes within the category of cases "Fifthly" of section 320, P.P.C. Punishable with imprisonment for life.
11. ' The observation of the learned Judge that respondents Rano and Islam fired on account of sudden provocation does not coincide with the facts of the case as according to the prosecution they came on the scene armed with rifles. For the aforesaid reasons I find force in the submissions of the learned counsel for the applicant in respect of accused Rano and Islam both sons of Mehrullah that the order granting bail to them is illegal and that the to them should be cancelled.
12. ' Learned counsel for the applicant, however, does not press his application in respect of Mehrullah as no overt act has been alleged on his part in the F.I.R.
13. ' For the aforesaid reasons the to respondents Rano and Islam is cancelled. They are present in Court and be taken into custody. The application against Mehrullah stands dismissed as not pressed.
14. ' I am mindful of the fact that the Courts and specially the superior Courts should not make any observations affecting the merits of the case while granting or refusing bail but I regret that to repel the grounds for grant of bail, I was G compelled to observe on the question of sudden provocation as it was one of the grounds which was discussed in the order of learned Additional Sessions Judge granting bail. However, it is clarified that the observations in this order are tentative in nature and will not be looked into at the time of trial. .